Court says “Top Two” should be on November ballot

A Maricopa County Superior Court judge ruled today that an initiative to overhaul the state’s primary system has enough valid signatures to go on the November ballot.

Judge John Rea found that 577 signatures earlier disqualified by the Maricopa County Recorder’s Office were actually valid

County elections director Karen Osborne said her office would not appeal the ruling because of the short timeframe officials have to start printing ballots for the general election.

“Time is of the essence, and we had to let everybody know that Friday was, in our opinion, the deadline for making decisions. We just need to get on with the general (election),” Osborne said.

In a separate case, Rea also rejected a lawsuit by a group that claimed the initiative’s backers used convicted felons to collect signatures, as well as other alleged problems with the petitions. The Save Our Vote committee filed a notice of appeal with the Arizona Supreme Court Friday afternoon.

The “Top Two’’ initiative had been disqualified by the Secretary of State’s Office because of a lack of valid signatures.

Proponents of the measure, known officially as the “Open Elections/Open Government Act,” sued in court and tracked down many of the people who had signed the petitions and demonstrated that their signatures were legitimate.

That changed the invalidity rate in a sample that had been used to reject the initiative. As a result, Rea concluded that the initiative actually exceeded the number of required valid signatures to put the initiative on the ballot by more than 6,000.

The initiative seeks to replace the primary system for electing officials with a system where the top two candidates, regardless of party affiliation, will advance to the general election.

Rea also ordered election officials to include the initiative in the publicity pamphlet for the November ballot, which describes proposals to be decided in the general election.

He said advocates for the “Open Elections/Open Government Act” persuasively demonstrated that the 577 signatures disqualified by the Maricopa County Recorder were valid.

In their presentation yesterday, Tom Milton, the initiative’s campaign manager and Paul Johnson, the committee’s chairman, focused on showing that the disqualified signatures belong to “qualified electors.”

They showed that many of those people were contacted individually and their signatures were verified. In other cases, the signatures were verified through the voter rolls and research.

In his ruling, Rea noted that some signatures were disqualified because of an invalid date: They did not contain month, date and year.

“However, the statute directs the recorder to disqualify a signature if ‘no date of signing is provided’,” Rea said. “From context and other clues, the Plaintiffs showed persuasively that the disqualified signatures were made on the appropriate dates.”

Earlier, advocates of the measure said the invalidated signatures included a 90-year-old woman whose signature was tossed out because the number 1 in her address looked like a 7, dozens of younger voters who didn’t list their apartment numbers with their addresses, and at least 16 people whose signatures were deemed to not match the signatures on file, but whom Johnson said verified to him personally that they signed the petition.

The committee also said it found voter registration records for 345 people whose signatures were tossed after the county determined that they weren’t registered to vote, 89 people improperly deemed to have invalid addresses, and 104 people whose signatures were scrapped because they accidentally listed the date as being in 2011 shortly after the New Year.

The judge’s ruling in this case also affected a separate lawsuit against the initiative that critics had filed. The second lawsuit sought to invalidate signatures that were gathered by individuals who allegedly have felony convictions, and by another person who didn’t sign the circulator affidavit.

Under Arizona laws, only qualified voters may collect signatures and felons whose civil rights haven’t been restored are not eligible to vote.

The judge concluded that two of the circulators do have felony convictions and the omission of a circulator’s signature is a “fundamental defect” that questions the validity of signatures.

Aaron Baer, a spokesman for Save Our Vote, said his group is appealing Rea’s ruling on the grounds that it did not get due process.

Baer said his group was not able to present all of its evidence in court. He noted that two felons were found to have circulated petitions, and said Save Our Vote would have gotten more signatures rejected if it had been able to present more evidence.

“The evidence that we were able to present was shown to be credible, and we had similar evidence to that, especially on the felons’ aspect and an entirely other field that we didn’t have time to present,” Baer said. “We should get more time. We deserve more time to present.”

These fatal flaws eliminated more than 2,000 signatures.

But Rea said since the initiative’s backers have proven in the companion lawsuit that they exceeded the number of required signatures by more than 6,000, invalidating 2,000 still means enough signatures were gathered to put the measure on the ballot.

The initiative needed 259,213 valid signatures qualify.

Based on the counties’ check of a 5 percent sample, the Secretary of State’s Office earlier determined the measure had only 249,068 valid signatures.

The campaign had submitted 358,629 signatures that were eligible for verification.

The Secretary of State’s Office forwarded 17,932 – a 5 percent sample – to the counties for verification.

The initiative needed 4,970 or fewer signatures from the sample to be invalidated to qualify for the ballot, but the counties nixed 5,291.

Joe Yuhas, a consultant for the campaign, said the shortened timeframe election officials had to validate the signatures led to the errors. He said election officials faced a time crunch in which they had to check three citizens’ initiatives in just 20 days, and that the Open Elections/Open Government Act was checked last.